As Expected, Judge Still Bans Real From Selling RealDVD

from the no-surprise dept

This will come as absolutely no surprise to folks who have followed Hollywood’s self-defeating battle against Real Network’s RealDVD offering. If you don’t recall, Real announced a product that would let users back up a DVD in their possession. Now, it’s important to understand a few basic facts: under copyright law, you are allowed to make a personal backup of something like a CD or software. That’s been found to be perfectly legal fair use. So, what’s the problem? Well, one of the worst aspects of the DMCA is that it includes a totally unnecessary (and constitutionally questionable) anti-circumvention clause. Basically, the DMCA says that if you circumvent (or offer tools to circumvent) any kind of DRM, you’ve broken the law (and here’s the ridiculous part) even if the actual copying you then do is perfectly legal. Yes, it’s like saying that breaking into your own house is illegal. It makes no sense at all.

Real tried to get around this issue in a clever way. It figured that if you really were limited only to being able to make a backup copy (rather than an unencrypted copy that could be passed around), then a court would have a hard time finding it illegal. And, in fact, it had some legal precedent on its side. Two years ago, a court found that Kaleidescape, makers of a super high-end DVD jukebox, was perfectly legal, since the device was clearly only designed to make personal backups, and couldn’t be used to distribute content.

Unfortunately, it appears that judge Marilyn Patel (who was also the judge who killed the original Napster) disagrees. She’s issued yet another injunction blocking Real from selling RealDVD, saying that it violates copyright law. Again, this isn’t a surprise. She had issued an initial injunction last year, and seemed quite skeptical of Real’s arguments earlier this years, declaring:

“They have the copyright. That’s the issue here right? They have the copyright. They have the right to exclude.”

This is only partially true. They have some rights to exclude, but those rights are limited. The question is whether or not Real’s actions fall outside that limit. But Judge Patel seems to disagree entirely with the Kaleidescape ruling, on that point.

Of course, the real issue here is how pointless a move this is for Hollywood, anyway. There are tons of DVD ripping software offerings out there — which don’t even have the limitations that RealDVD does. I can’t fathom who would buy Real’s product in the first place, knowing that there are much better, non-limiting products out there. Yet, here was a product that was doing everything it possibly could to play within the rules to make DVDs more valuable by letting people make use of their legal right to back up a DVD they had purchased, and Hollywood wants to crack down on it? The only thing that will do is drive more people to use the other versions of DVD ripping software out there. So, congrats, Hollywood, on pushing more people — people who wanted to be good, legal, customers of your DVDs — to go around the law to back up their DVDs, leaving them more open to file sharing.

It’s difficult to fathom how anyone could think this was a smart move by Hollywood, or even how this is a “victory” for Hollywood.

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Companies: mpaa, realnetworks

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Comments on “As Expected, Judge Still Bans Real From Selling RealDVD”

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50 Comments
Ilfar says:

Re: Spammers

Y’know, I got that idea myself, for some reason… ๐Ÿ˜‰

Movies on DVD are just annoying – A laptop that can run Spore (albeit at the lower end of the graphics settings spectrum) can’t watch a DVD without some stuttering in places. I can’t watch a movie off DVD on battery power, it will run out after about an hour (spinning the disk, CPU usage through the roof). Then all the free DVD players tend to be crap (VLC excepted, but all the stuff that comes with a laptop is absolute rubbish). I won’t even bother complaining about zoning. ๐Ÿ˜›

DVD’s single greatest boon is that I don’t need to swap CDs four times installing games now.

Name Me This or That Or Whatever says:

If a product is uncopyable as it is, your right to make a copy ends where you cannot make the copy. DRM would be no different from copyguard or similar products that make it difficult to make copies. Copyguard didn’t infringe rights.

Mike, you make a very broad and wild assumption, that your personal rights trump everything else. Your personal rights bump up against other’s rights and they may stop sooner or later than you expected.

Remember, real life isn’t a theoretical debate by two under worked professors, it’s real life.

The Infamous Joe (profile) says:

Re: Re:

..and real life is that there are many, many, many dvd rippers out there who rip dvds to a totally unencrypted and easily distributable format. The one company that tries to play by the rules gets attacked from the people who made the rules they’re trying to follow.

That’s not a theoretical debate, it’s stupid.

Try to follow along, pal.

Killer_Tofu (profile) says:

Re: Re: Re: Re:

The DMCA is a waste of the paper it was written on. The only decent part of it is the part that should not have to be there (common sense part about when somebody is not the offender, they cannot be held liable).

Since it seems to so clearly go against my right of first sale (which I would say is also a common sense law) then I choose to ignore it.

If you want to follow it, fine, but I sir will not drink the purple cool aid you are dishing out.
Once I buy something, I will do with it as I please, and anyone trying to tell me otherwise can get bent.

Anonymous Coward says:

Re: Re: Re:2 Re:

“No. It is like trying to go 55 mph on the highway but the car you bought has a regulator that limits your speed to 35 mph. So you hack your car to disable the regulator, so you can go the legal speed limit.”

Even better: They set the law so that you can only go to 55 mph. Any circumvention tool that allows to break said law is outlawed. Since cars would allow you to break the speed limit, cars are outlawed. So a company makes a car, and adds a regulator so you can’t go faster than 55. Then a judge says, “nay, that’s still wrong. Ha ha!” and forbids you selling the car.

Anonymous Coward says:

Re: Re:

That is quite possibly the dumbest thing I have ever heard.

If you say something out loud, I can’t copy it as is. I need a tool, e.g. paper and pencil, audio recorder, video recorder, to copy it.

If I’m standing in a meadow and see a fantabulous butterfly, I can’t just blink my eyes and make a copy of it. I need a tool, e.g. paper and pencil, camera, video recorder.

If I own a DVD and I want to back it up, I need a tool.

Also, not speaking for Mike, but for myself, I’d prefer that my personal rights stopped where they are supposed to and not where a sh1tload of money and lawyers decide they ought to.

All I’ve got is real life, and it’s a little too important for gangs of lawyers and clueless judges to be deciding what I should and shouldn’t be able to do based on their theoretical debates.

Mike C. (profile) says:

Re: uncopyable issues

There are actually two issues here:

My biggest problem is that they made the product uncopyable to begin with. If I have a choice between a DRM version and non-DRM version, I will almost always go for the non-DRM version even if it costs more. I have kids and kids aren’t always as careful with stuff as I’d like them to be. As such, I like to make a copy and “use” my copy instead of the original. If something happens to it (e.g. gets scratched), I destroy it and make a new copy to use. I do this because it only takes a single small scratch to completely ruin a disc. Compar this to other forms of entertainment or even life in general where an imperfection does not ruin the whole work:
– page ripped in a book, you can still read around it and get an idea of what happened.
– a few bad pixels on a TV or computer screen, you can still see bulk of the image being displayed.
– a few bad sectors on a hard drive, you can still save data to other areas.
– a scratch in the side of your car, you can still drive it.

But when it comes to shiny plastic discs, if you get a scratch, Hollywood seems to want you to go buy a new replacement. The concept of backing up or archiving digital information is something everyone is told to do. If they won’t allow us to back up the media and the chances of getting a disc-ruining scratch are higher than the average piece of merchandise, then how economically valuable are these discs in the first place? I really want to support the artists through buying their product, but not if it means re-purchasing the same product every year because of their flimsy design.

Mike C. (profile) says:

Re: Re: uncopyable issues

Forgot issue 2… duh:

The other issue is what other people and Mike have already posted. Real was trying to work WITH the system… to create an application that limited the copying to just what was allowed under copyright. The response from Hollywood was that rather than try to help guide consumers to a limited copying solution and fight the UNlimited solutions, they ignore the unlimited applications and attack the one that is closest to being a valid product.

It reminds me of when the Guardian Angels in NYC got into trouble for helping to fight crime. Let’s forget the true criminals and go after the easy targets trying to help. That’s sure to work…. not!

MBraedley (profile) says:

Re: Re:

“Mike, you make a very broad and wild assumption, that your personal rights trump everything else. Your personal rights bump up against other’s rights and they may stop sooner or later than you expected.”

Wow, you’re either not an American, or simply don’t believe in your own constitution. Although I’m not an American, I’ve read through the Bill or Rights and generally understand it. I may not agree with all of it, but that’s another issue. However, it’s clear from the language of the first ten amendments that the intention was to give Americans very broad rights and freedoms. Hate speech, which is generally illegal in most other Western countries, is protected by the first amendment, as an example. Sure, there are limits to a person’s rights and freedoms, but I’m sure they’re well beyond what you think they are.

R. Miles (profile) says:

Maybe there's bias?

In reading judge Patel’s ruling in the Napster case, I would agree this decision was not a surprise.

Ever read her position regarding copyright outside the courtroom?

If she had been a judge in the Pirate Bay case, the ruling wouldn’t be any different.

This woman clearly has a reading comprehension problem when it comes to actual copyright laws.

Thank you, judge Patel, for stripping us of yet another useful tool because YOU feel it violates copyright.

Judge. Law. Ruling. Problem.

BobinBaltimore (profile) says:

Right Ruling on a Bad Law

Hate to say it, but the judge is right given the present law. Until DMCA is properly challenged at a higher court level, or changed, lower court judges will continue to interpret it for what it is. So, yes, very predictable.

I do have to call you out, Mike, on the comparison to the Kaleidescape case. With Kaleidescape, as I read it, they actually ADDED a layer of DRM to the copy made, much to the dissatisfaction of wealthy rippers everywhere (well, it did cost north of $20K). RealDVD strips DRM and leaves it wide open on any media and at any location you choose, like the ol’ DVDXCopy. Very, very different cases.

And for the angry hoards, I completely agree that consumers should be able to make backup copies of any media they purchase, and play them ubiquitously on any of their computer or A/V equipment. So you’ll get no argument form me on these points.

Anonymous Coward says:

Re: Right Ruling on a Bad Law

“play them ubiquitously on any of their computer or A/V equipment”

That is never the issue – the issue is that enough people don’t have self control, and immediately start giving away copies to every tom, dick, and harry walking by.

I can see all the great uses for realdvd; Netflix delivers, you rip the DVD and 2 hours later it’s back in the mail. Netflix delivers you the maximum every month, and you end up with a huge collection of movies (non of which you have any rights for).

Your cat walks on your computer and by chance, all those copieds of DVDs (now in ISO format) accidentily get shared on the file sharing system your cat logged into.

There is enough illegal sharing of files going on out there, why allow Real to sell a product that actively unlocks the keys to a DVD for everyone?

Anonymous Coward says:

Re: Right Ruling on a Bad Law

Mike is wrong because Kaleid was a different issue — contract disputes and bad lawyering (not copyright infringement). In that case, the question was whether K was required by contract to have the DVD in the device during playback. The CCA agreement had your standard merger clause (“this document is the only agreement between the parties”) and then the CCA tried to argue that the agreement (badly drafted by themselves) also incorporated a letter that said members shouldn’t be allowed to have a device play a movie while the disc isn’t inside. The original agreement said nothing about that. The lawyers never sued for any copyright infringement, so there was no ruling that K’s device did or did not infringe on copyrights. The judge ruled that the letter was not part of the agreement, and the CCA couldn’t unilaterally and retroactively amend the agreement. K could continue to manufacture the device without issue.

On top of that, rules of civil procedure basically state that if you and I are in a lawsuit over an incident, we have to file all our known claims about that incident right now or waive them forever. Since the CCA didn’t file copyright infringement for the incident, they’re barred from it forever against K (not necessarily anyone else). There are also circumstances that very likely prevent members, subsidiaries, and parent corps of the CCA (namely the MPAA) from winning on the waived issue against K.

You’re also wrong in that RealDVD doesn’t actually strip the DRM. It just makes a bitwise copy onto the hard drive. The problem in both cases is that even though you have DRM on the disc image, it can still be played anywhere, regardless of whether you own the DVD, because all DVD players (hardware and soft) can read that disc image. Rent or borrow a movie? Copy it bitwise, and you have it forever. So even though the DRM was not unlawfully decrypted, it was still circumvented.

The bottom line is that the judge followed the law correctly. The real question is whether that law is the best policy.

Mike Masnick (profile) says:

Re: Re: Re: Right Ruling on a Bad Law

You still related the JukeBox ruling and RealDVD, when the basis was entirely different. Not minor “details” as you say on your subsequent post about that case…key points.

I disagree. The key points are still the same — concerning the right to make use of a product you legally bought. The contractual matter in the Kaleidescape case is still backed up by copyright and the DMCA in the end.

Robert says:

Breaking into your own home may be illegal

Breaking into your own home may be illegal… in many places breaking an entering the act is illegal, unless your law enforcement or a *licensed* locksmith.

You won’t go to jail… normally. But you’ll get some sort of fine.

That said… kinda makes you wonder if locksmith licensing shouldn’t fall under the same category. Is it really necessary in modern times when you can buy a lockpicking kit online for $10?

Michial Thompson (user link) says:

This is not for BACKUP purposes

You are losing grasp of one fact. RealDVD’s purpose is NOT to backup DVD’s. It’s purpose is to COPY the DVD so that the COPY is what is used. There is a big difference.

You are only correct that you have a legal right to make a backup of your DVD, but your legal right to use that backup exists ONLY if the original is destroyed.

Kevin J says:

Re: This is not for BACKUP purposes

“It’s purpose is to COPY the DVD so that the COPY is what is used.”

I’m sorry, what? I have to ask this with all seriousness, but what is a backup other than a COPY? If I backup a database, do I not create a COPY of the database? And isn’t the purpose of a backup so that “the [backup] COPY is what is used” when the original is destroyed or otherwise unusable? What is the use of a backup if you can’t use it in place of the original when you need to?

technomage (profile) says:

Re: This is not for BACKUP purposes

Sorry I disagree with you on this, as does micro$oft. Micro$oft repeatedly told people (during the age of floppies) to make backup copies of them, then USE the backups to install. That way you always have the original to make another duplicate. multiple copies off an original(stretching here calling anything truly original in this context) is a far better cry than a copy of a copy of a copy. Case in point: cassettes.

B8A (user link) says:

Further consequences of civil disobedience?

I claim that when the laws of a country are in sufficient variance with the behaviours of a significant proportion of the population then regard for the law overall is at risk. In other words, when many people disregard the law in one area, disregard in other areas is facilitated. The authority of the state is ultimately consensual. After copyright (widely disregarded in the early history of the united states as official policy) what next?

In the case of drm (ineffectual) the true aim of manufacturers is a delaying manoeuvre, buying them time on a heavily invested business model until public non compliance is so rampant they can blame the collapse on ‘we the people’ rather than at their own unresourceful feet.

Phoenix says:

International Implications?

Thankfully, I have an application that is much better than RealDVD to support my fair use needs.

I’ve paid for digital copies of video and audio content that is protected by copyright and I will respect the copyright owners rights by not illegally distributing the content. However, rightly or wrongly, I consider it my right to chose which device in my house I will use to play the content and that implies additional form factors beyond DVD.

Steve says:

Re: International Implications?

I agree with Phoenix 100%, and I do the exact same thing at my house.

I rip all my DVDs so I that I can watch them how I want. However, I do not distribute copies to anyone. Let them buy their own. While I hate the fact that technically this may be against the law, consider it a case of civil disobedience against an unjust law.

Anonymous Coward says:

Now, it’s important to understand a few basic facts: under copyright law, you are allowed to make a personal backup of something like a CD or software.

Please correct me if I am mistaken, but under the specific provisions of Title 17 backup copies “aka, archival copies) pertain only to software. See: 17 USC 117

There is no statutory right to make a backup of anything else. Hence, the authority to make such a backup would need to be based upon some alternate approach such as contract law.

jaf says:

Gun rights?

Does this have second amendment issues? In that something that is legal (be it a pistol or DVD copy software) has nefarious uses (shooting someone or making a copy of a movie to sell) and less nasty ones (target shooting or making a personal back up). In the case of the DVD software, since it can be used for bad, it is illegal, the pistol is not. Seems like the only difference I can see is money……

Anonymous Coward says:

This quote by the judge sums it up

“The court appreciates Real’s argument that a consumer has a right to make a backup copy of a DVD for their own personal use,” Patel wrote, but noted that “a federal law has nonetheless made it illegal to manufacture or traffic in a device or tool that permits a consumer to make such copies.”

You have rights, it’s just illegal to exercise those rights.

PRMan (profile) says:

A quote from Judge Patel..."Blame Congress!"

So while it may well be fair use for an individual consumer to store a backup copy of a personally-owned DVD on that individual’s computer, a federal law has nonetheless made it illegal to manufacture or traffic in a device or tool that permits a consumer to make such copies…. In enacting the DMCA, Congress chose to strike a balance to combat piracy and maintain economic incentives to create. The balance embodied in a federal law is not something this court can disturb, absent a Constitutional violation not at issue here…. (“The fact that Congress elected to leave technologically unsophisticated persons who wish to make fair use of encrypted copyrighted works without the technical means of doing so is a matter for Congress… .”).

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